THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS
DEC- S2014-026
Pearse Bolger
(represented by Patricia Holohan & Company Solicitors)
versus
Bus Eireann
(represented by Colm Costello.)
File reference: ES/2013/0024
Date of issue: 23 December 2014
Keywords: Equal Status Acts, Disability, Failure to provide reasonable accommodation,
Dispute
1.1 The case concerns a claim by Mr Pearse Bolger, (hereinafter referred to as ‘the complainant’) that he was subject of discrimination by Bus Eireann (hereinafter referred to as ‘the Respondent’) on the grounds disability contrary to section 3 of the of the equal status Acts 2000 to 2011 (hereinafter referred to as ‘the Acts’) in its’ failure to provide him with reasonable accommodation, pursuant to Section 4 of the Acts when he was unable to access their services. The complainant submitted that the respondent in providing services had failed to meet its obligations under the Acts.
1.2, The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 19 March 2013. On 6 October 2014, in accordance with his powers under S. 75 of the Employment Equality Acts, and under the Equal Status Acts , the Director delegated the case to me, Peter Healy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a hearing was held on 3 December 2014 as required by Section 25(1) of the Acts.
Summary of the complainant’s submission
2.1 The complainant who is visually impaired uses the Bus Eireann service between Dublin and Navan on a regular basis. The complainant has submitted details of five occasions from October to December of 2012 when he was standing at a Bus Eireann Bus Stop when buses failed to stop. The complainant submits that the respondent has a long history of this behaviour. The complainant submits that he was clearly identifiable as a person with a disability in the form of blindness with a clearly identifiable guide dog.
2.2 The complainant submits that the failure to stop, to seek clarification as to whether or not he wished to avail of the particular service is discrimination based on his disability.
2.3 The complainant also submits details of an incident on 9 November when he contacted Bus Eireann by phone to complain about the manner in which he had been treated. The complainant submits that he was told to put his complaint and a request for information in writing, despite the complainant stating that he could not do so because of his disability.
2.4 The complainant submits that in January 2013 when his legal representatives contacted the respondent it was suggested that the complainant should get the bus from one particular central Dublin location and that “many drivers will not recognise Mr Bolger” The complainant submits that this communication demonstrates discrimination as no other service user would be given such a direction.
2.5 The remedy sought by the complainant is that the respondent enforce mandatory stopping of all buses on a chosen service at four particular bus stops identified by the complainant (as had previously been agreed with the respondent.)
Summary of the respondent’s submission
3.1 The respondent submits that it is aware of the complaint’s disability as they have a long history of engagement with him and that they have made reasonable accommodation in the past through the following measures,
The complainant has the mobile phone numbers of all the relevant managers in Bus Eireann and he has generally contacted managers before he was due to go to a particular stop and the relevant driver would be contacted and instructed to stop at that particular stop.
On occasions when the above arrangement did not work Bus Eireann paid for Taxi to bring the complainant his home.
Following previous communications with the complainant (and formal application to the National Transport Authority, NTA), the respondent introduced compulsory stops for four bus stops used by the complainant entirely for his benefit. All drivers were notified of these stops and disciplined if they failed to comply. There have been complaints from other passengers about these stops.
The respondent submits they have refunded the cost of the complainant’s phone calls to the company.
The respondent tried to put a bus stop in the complainant’s home town but was refused permission by the NTA.
3.2 The respondent submits that in relation to one of the incidents named by the complainant that the bus driver noticed the complainant at the last moment and beeped the horn and drove on but circled back through various smaller streets to the bus stop in question but by the time he got back he noticed the complainant getting into a Taxi. A few days later the respondent received and paid the invoice for that Taxi journey.
3.3 The respondent submits that while most passengers have regular routes but not the complainant who they submit appears to have been testing the respondent by waiting at different bus stops at different times.
3.4 The respondent submits that there had been no complaints from the complainant since the introduction of agreed compulsory stops up to the referral of a complaint to this Tribunal.
.
Conclusions of the Equality Officer
4.1 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: “On any of the grounds specified... (in this case the age and disability grounds).... A person is treated less favourably than another person is, has been or would be treated.”
Section 3(2) provides that: as between any two persons, the discriminatory grounds are,
(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),.,”
In the instant case it is clear that the complainant has a disability under the Acts and this is not contested by the respondent.
4.2 In regards to reasonable accommodation, Section 4 of the Acts provide:
4.(1) For the purposes of this Act discrimination includes a refusal or failure by
the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
In the instant case, It is agreed that the respondent has provided some special treatment for the complainant and that the complainant was involved in that process. The complainant is contesting that the special treatment in place is enough to allow him to access the service in the same manner as a person without his disability.
4.3 Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
Agreed special treatment
4.4 In the instant case it is agreed by the complainant that representatives of the respondent met with him at his home and other locations and that the three of the measures outlined at 3.1 are fully in place, specifically the facility to advise managers of his travel plans, use of Taxis and refund of phone call expenses. I find that these measures alone are sufficient evidence that the respondent has provided special treatment that allow the complainant to avail of their service. Further, it is clear that the complainant is experiencing a superior service to other passengers as he gave evidence at hearing that generally he is able to get a taxi quickly and that it’s far quicker than the bus.
4.5 In relation to the incident when the complainant alleges that he was instructed to put his compliant in writing I find that even if this had occurred it would be an instance of administrative error as,
· it is not the policy of the respondent.
· the complainant must know that it is not the policy of the respondent due to his extensive history of engagement with the respondent.
Disputed measures
4.6 I find the following to be the relevant facts in relation to the issue of the four mandatory stop,
· The respondent consulted with the complainant regarding the identification of four stops that would suit his personal requirements.
· The respondent committed significant time and resources into implementing the four mandatory stops which are the only ones in existence on their network.
· The implementation of the first ever mandatory stops was a significant exercise for the respondent and took a number of months to implement. Their introduction results in an extra five minutes to the journey time of 5000 other passengers on a daily basis.
· Following the implementation of the four stops, the complainant submits that he never attempted to use any of them. I find this behaviour by the complainant to be unreasonable and demonstrates a lack of co-operation on the part of the complainant with the respondents attempts to introduce measures for his benefit.
· The complainant submits as a passenger that the regularly observes his bus passing the mandatory stops. The respondent has submitted written evidence that the busses are stopping at the mandatory stops. I must prefer the account put forward by the respondent as the complainant has never attempted to use the service.
I accept the respondent’s submission that they have put in place procedures to ensure the mandatory stops. Even if I accept the complainant’s submission that some busses do not stop at the mandatory stops it’s clear, in this specific regard, that the complainant has never been subject to less favourable treatment as
· he has never used them
· other people without a disability at those stops would have received the same treatment.
· other special treatment is in place for the complainant in the event a bus does not stop.
4.7 The respondent submits that a letter advising the complainant that he must go to a particular location as there are no mandatory stops in service was an administrative error. I accept their submission in this regard and find that the complaint must also know that this is an administrative error due to
· his history of engagement with the respondent regarding mandatory stops.
· the fact that his complainant is premised upon the existence of the mandatory stops and the respondents apparent failure to service them.
Decision
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 25 of the Equal Status Acts.
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against him on the ground of disability.
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Peter Healy
Equality Officer
23 December 2014